War Crimes Prosecution of the Century: Australian Accountability

This terrific essay by two experienced  and thoughtful Army judge advocates outlines the myriad issues involved in what truly may be the war crimes prosecution of the century -- not only for Australia, but for the world. While the erudite lawyers' essay focuses on evidentiary and other trial-related challenges in Australia's prosecution of Ben Roberts-Smith, it appropriately brings to fore the the political, social and cultural obstacles to trying Australia's most decorated living military veteran for multiple counts of murder on the battlefield.

Such dynamics are present in many if not most war crimes trials, and they are on steroids here given that Roberts-Smith is a national war hero who had been awarded the nation's highest military honor.  If the U.S. military community thought Navy SEAL Eddie Gallagher's court-martial for alleged war crimes several years ago was a made-for-TV show, fraught with political baggage -- tune in to what's happening on the other side of the world in this Aussie prosecution. 

Interestingly while Australia does the hard and required thing to comply with its legal obligations to ensure fair accountability for alleged war crimes, Israel recently witnessed seemingly the exact opposite with its shameful handling of the criminal case against IDF soldiers for their "alleged" (captured on video, hence the quotation marks) brutalization of Palestinian detainees during the Gaza War. For more on that episode of a severe lack of accountability for war crimes and the immense political and social pressure that led to such impunity, see this piece by two leading experts in the field. 

Moral legitimacy is hard to come by, and Australia sure seems to be working on building its own while other nations -- including the U.S., given its military serial murder campaign (crimes against humanity) in the Caribbean and threatened war crimes in Iran -- sadly move in the opposite direction.

Not military justice, but . . .

Prof. Michael Schmitt has posted this extraordinary (and extraordinarily timely) essay on Just Security, titled A Primer on Just War Theory and the Iran War. Read the whole thing; here are his Concluding Reflections:

While States must be guided by extant international law when considering whether and how to use force, its rules set only the legal boundaries that they may not cross, whether through action or omission. The decisions our leaders make must equally be informed by moral considerations, which seem in short supply in the ongoing conflicts. Just war doctrine helps calibrate the moral compass that should inform such decisions and serves as a useful framework for balancing military and humanitarian considerations when interpreting international law rules that may not offer clear guidance in the attendant circumstances. Despite the Vice President’s pontification on the matter, I will stick with the views of the Pontiff on the interpretation of the doctrine.

As to the broader dispute between the Trump administration and the Holy See, it is worth remembering that Popes have been instrumental in advancing positive political change. The obvious example is Pope John Paul II, who, by championing human rights, self-determination, and religious freedom, played a pivotal role in undermining autocratic communist regimes and fostering democracy in the former Soviet Union, Eastern Europe, and beyond. Pope Leo is following in this proud tradition in speaking out on issues of war and peace.

Lastly, with regard to the ongoing conflict between the United States and Iran, David Brooks insightfully observed on the PBS NewsHour Friday that we are seeing a “contrast between the way Trump has gone into this war, which is cavalier in the extreme, and Catholic just war theory, which traces back to Augustine and Aquinas, [and] which is intellectually rigorous.” This leads him to conclude, rightly so in my opinion, that the Pope is “trying to put [in place] an intellectual, rigorous process on how you evaluate a very deadly policy. And the Trump administration is completely incapable of thinking in these terms.”

It seems appropriate to close this essay on the Trump administration and the Catholic Church with an extract from the Catechism itself (¶ 2317):

Injustice, excessive economic or social inequalities, envy, distrust, and pride raging among men and nations constantly threaten peace and cause wars. Everything done to overcome these disorders contributes to building up peace and avoiding war.

You don’t need to be Catholic to grasp the wisdom of the observation.

Shany and Cohen on the end of the Sde Teiman case

Lawfare has published this sober (and sobering) review by Professors Yuval Shany and Amichai Cohen of the Sde Teiman affair in Israel. Excerpt:

While the MAG’s decision to withdraw the charges against the accused soldiers can perhaps be justified by the combined effect of the case’s evidentiary problems and the potential procedural consequences of the parallel prosecutorial misconduct investigation, the overall outcome of the case raises serious concerns. First, the withdrawal of the case, notwithstanding the extreme seriousness of the charges, creates a risk of impunity and indirectly endorsing the right-wing narrative of the “framing” of the Sde Teiman Five. The soft language in the decision concerning a “grave and troubling” sequence of events does not amount to a clear acknowledgment of unlawfulness of the soldiers’ conduct, nor an effective repudiation of the claim that the military legal system had wrongly framed them. The celebratory manner in which right-wing politicians and the right-wing media have received the decision is likely to reaffirm their “Israel-can-do-no-wrong” narrative, which, in turn, delegitimizes efforts to hold IDF service members accountable for crimes committed against Palestinians.

Second, although the decision refers to professional considerations, it’s impossible to ignore the severe political pressures surrounding the case—including political efforts to discredit the MAG Corps. The leak and cover-up scandal, which was an unwise and allegedly unlawful reaction to the political pressure, further weakened the corps, in a manner that calls into question their ability to conduct high-profile prosecutions against IDF service members. The underwhelming record, so far, of criminal investigations in connection with the Israel-Hamas war (according to IDF statistics published in May 2025, about 1,500 operational investigations and some 60 criminal investigations were opened—excluding investigations of looting—and two criminal prosecutions were filed) raises concerns as to whether the MAG is willing and able to conduct criminal cases in the face of an increasingly hostile political climate. Unless corrected through robust action in other pending investigations, this impression is likely to greatly complicate Israel’s efforts to claim complementary or subsidiarity before international and foreign criminal courts.

Finally, the decision confirms long-standing concerns about the contagious effects of rule-of-law deficiencies in the military justice system and the broader Israeli legal system. The Sde Teiman scandal started with a misuse of a detention facility because the minister of national security had intervened politically in the policy of detainee incarceration. It continued with the Supreme Court dragging its feet to hear the case, and with the Israeli government’s failure to facilitate international visits by the International Committee of the Red Cross to the detention center.

The serious abuse of detainees in Sde Teiman was initially handled strongly by the military police, but the strong political backlash has pushed the military legal system into a tailspin, resulting in professional misconduct and a thwarted prosecution. Cumulatively, the whole affair marks a low point for the rule of law in Israel. In order to bounce back, the legal system, including the military legal system, should find a way to assert its authority vis-a-vis the political environment—a development that appears unlikely in today’s climate of increased hostility between the legal and political universes in Israel.

The tank top case

Last day of active duty? Don't wear a tank top or short skirt. The Times of Israel has the story here. Excerpt:

Another of the soldiers’ mothers suggested on Facebook that her daughter’s “show trial” was a case study in misogyny.

“What was the point? To educate? To make an example of them? To stop them from repeating the horrible act of wearing jeans and a tank top?” wrote the mother, an attorney, on Facebook. “I wonder if male soldiers being discharged while wearing a tank top would have also been court-martialed. For some reason, I think not.”

In wartime? 

Ad hoc military judges?

It sounds like the not-so-good -old-days of military justice, but it's a proposal being floagted now in Indonesia. Consider this Kompas.id report:

The proposal to involve ad hoc judges in handling the acid attack case against KontraS activist Andri Yunus, as conveyed by Vice President Gibran Rakabuming, is considered difficult to realize.

The placement of ad hoc judges in the military justice system must be accompanied by fundamental legal steps, such as issuing a Government Regulation in Lieu of Law (Perppu) or revising Law Number 31 of 1997 concerning Military Justice. Normatively, current military justice procedural law does not recognize ad hoc judges.

The proposal has met opposition, with some saying it's more important to enact a revised Military Justice Law. 

"Double" jeopardy

Under the UCMJ, a U.S. servicemember can be prosecuted at court-martial even when a state court has tried him--there is no U.S. Constitutional double jeopardy bar--two different sovereigns. This rule allows for court-martial even if the servicemember is tried and acquitted in a state civilian trial. Hennis (CAAF) is a good example. He was tried and acquitted of murder three times in a civilian court. Years later, advances in DNA led to a court-martial, a conviction, and he is awaiting a death sentence.

If the crime is handled in federal district court, then double jeopardy applies for (only) offenses handled in federal court--a court-martial and a federal district court are the same sovereign. There are cases of prosecutions in federal court and at court-martial, where the court-martial charges were not prosecuted in federal court, even when the charges arise from the same general conduct. However, United States v. Rice, 80 M.J. 36 (C.A.A.F. 2020), presents a cautionary tale. 

There is a Memorandum of Understanding between the Department of Defense and the Department of Justice that addresses who will prosecute when both parties to the memorandum have an interest in prosecution. 

Anyway, this brings us to a recent decision from the Supreme Court of India.

The Supreme Court on Wednesday (April 15) observed that once the defence forces have elected a continuation of criminal proceedings over the disciplinary proceedings, then acquittal in a criminal proceeding would bar the subsequent initiation of the disciplinary proceedings against a defence personnel. Setting aside the Delhi High Court's Division bench judgment, a bench of Justice Dipankar Datta and Justice KV Viswanathan restored the honour of an ex-Air Force personnel, with granting consequential service benefits nearly after three decades, who was subjected to a disciplinary inquiry post-acquittal in a criminal proceeding.

A U.S. servicemember prosecuted in state or federal court, regardless of an acquittal, may be administratively removed from the service, based on that conviction or acquittal. There are several "disciplinary" processes available to a commander, Service Secretary, or the President, depending on the person's rank.

A servicemember can be processed for an administrative discharge characterized as "service" Under Other Than Honorable Conditions (OTH). He is entitled to Fifth Amendment due process through a hearing, counsel, and the opportunity to present evidence. An OTH carries both stigma and adverse employment and social consequences — this is not a Dishonorable Discharge adjudged at a court-martial, but the effects are the same. The basis is for separation is the commission of serious misconduct. Whether there is an acquittal is largely irrelevant because it's the underlying conduct that matters. Acquittal is generally not considered a finding of innocence, especially where the standard of proof in an administrative hearing is by a preponderance of the evidence.

For a convicted officer sentenced to confinement, the President can drop him from the Rolls and sever his connection to the military--even if retired at the time of the conviction. Another option may be a reduction in rank upon or in retirement. Grazioplene is  a useful example. A major general convicted of serious offenses, committed while on active duty, after retiring, was reduced to the rank of second lieutenant in retirement (the lowest officer grade). See 10 U.S.C. § 1161(b), read with 10 U.S.C. § 1167 (see para. 1161(a)(3)). Note that in Clinton v. Goldsmith, 526 U.S. 529 (1999). The Supreme Court described the drop-from-rolls action as an executive/personnel action, not part of the court-martial findings or sentence, and held that the Court of Appeals for the Armed Forces lacked jurisdiction to enjoin it under the All Writs Act.

The Supreme Court of India also "ordered the grant of a farewell for him." Interesting that the court can order a retirement ceremony and follow-on party.

Click here to download judgment:

https://www.livelaw.in/supreme-court/air-force-act-disciplinary-proceedings-cant-be-initiated-against-officer-discharged-in-criminal-trial-on-same-charge-supreme-court-530476

Annual reports of the TJAGs

All but one of last year's annual reports are now available. Caseloads continue to decline.

Project Outreach

The U.S. Air Force Court of Criminal Appeals recently made a Project Outreach visit to Syracuse University's College of Law. Here's a worthwhile report. Excerpt:

Those who participate in Project Outreach write amicus briefs and present live oral arguments, duties that help them make the leap from classroom to courtroom.

Second-year law students Ava Dussmann and Hannah Rice were part of the amicus curiae for the U.S. Government (i.e., the appellee). On track to become Air Force judge advocates, or JAGs, they found the experience eye opening. Real people. Real cases. No room for error.

“I was grateful for the opportunity to step into this world that has been a dream of mine for such a long time and work with an amazing team of students, professors and practitioners in the field,” Dussmann says. “Through this opportunity, we got to research and learn about the contours of the Uniform Code of Military Justice.”

Rice adds that sitting before three Air Force colonels, arguing a real case with classmates who might someday be her colleagues, is when “theory turned into practice.”

High and tight cut in Austrian ruling

Times change, they say. Consider this account of a recent decision of the Constitutional Court of Austria: hair requirements cannot discriminate between women and men in the armed frorces. Excerpt:

Austria’s Constitutional Court struck down the military’s strict short-hair requirement for male soldiers in Vienna on Thursday. The policy must be scrapped and replaced with a grooming code that complies with constitutional standards for both men and women. The judges concluded the contested provisions conflicted with equality protections and interfered with personal rights. 

The decision ends a longstanding mandate that male professional soldiers and conscripts keep their hair short enough not to touch the collar. The case reached the court after a soldier challenged the policy following an order that he pay a €2,200 fine for wearing his hair in a ponytail, according to BTA. The court determined that the stricter standards for men could not be justified and had to be removed as inconsistent with the principle of equal treatment.

Wikipedia has this article on "high and tight." Want to know more about military hairstyles? Check this out.

Are you asking for a friend?

Here's a useful primer on conscientious objection in the U.S. Armed Forces. Excerpt:

In a volunteer force, that requirement can be difficult to meet in practice. Service members who willingly entered military service must show that their objection is not tied to a specific conflict or circumstance, but reflects a broader opposition to all war. That distinction can be challenging to establish, particularly when the claimed change in belief arises after an entirely voluntary enlistment or in proximity to deployment.

The requirement that objections apply to “war in any form” reflects a policy judgment. Allowing selective objection would undermine the military’s ability to deploy forces consistently and could create inequities among service members.

Timing is another important limitation. While individuals can apply for conscientious objector status after entering service, late claims may be scrutinized more closely, especially if they arise around a deployment or disciplinary action. That does not automatically disqualify the claim, but it may affect how sincerity is evaluated.

Where should this case be tried? (another in a series)

South Korean military personnel are accused of having participated in a failed attempt to impose martial law. Should the case be tried in civilian court or a court-martial? The special prosecutor is appealing a transfer of the case to the military justice system. What to do? Excerpt:

According to the special counsel and other sources on Tuesday, the dedicated insurrection trial division — the 38-1st Criminal Division of the Seoul Central District Court (Presiding Judge Jang Seong-jin) — transferred the cases of three military generals and five colonels to the Central Regional Military Court. The defendants include former Army 1st Corps 2nd Armored Brigade Commander Brig. Gen. Ku Sam-hoe and former Ministry of National Defense Innovation Planning Director Brig. Gen. Bang Jeong-hwan, all facing charges including engaging in critical insurrection duties.

The court explained its reasoning for the transfer, stating, "The dedicated insurrection trial division law only stipulates exclusive jurisdiction over insurrection cases and does not contain explicit provisions regarding judicial authority." The court added, "Judicial authority over these cases lies with the military court."

The special counsel team said Tuesday, "We have requested the Ministry of National Defense to refer the cases to the insurrection special counsel under Articles 7(1) and 7(2) of the Insurrection Special Counsel Act, so that the dedicated insurrection trial division of the Seoul Central District Court can hear them for swift and efficient prosecution."

Memo to Spanish Army sergeants: do not abuse your subordinates

Thus spake the Military Chamber of the Spanish Supreme court in this case. Excerpt from the news account:

The first comment for which he was convicted occurred at the end of a shooting exercise, when the sergeant told the soldier, "Get in the truck, your comrades are going to give you a bukkake ." The second incident took place after the soldier had shaved the back of her neck and her superior asked her "if she had become a lesbian and if she was now using dildos."

HH Judge Jeff Blackett, “The legality of the use of armed force against Iran”

In a recent post, HHJ Jeff Blackett, OBE, has commented on the lawfulness of the joint Israeli and American use of force against Iran.

The essay advances a doctrinal and normative claim about the lawfulness of the use of force against Iran. Doctrinally, the argument is that the United States and Israel could lawfully resort to force on two distinct bases: first, self-defense under Article 51 of the U.N. Charter beginning on February 28, 2026; and second, Security Council authorization following the adoption of Resolution 2817 on March 11, 2026. Normatively, it contends that the Charter should not be interpreted through an unduly narrow, historically fixed reading that fails to account for contemporary threats such as proxy warfare, transnational terrorism, and nuclear proliferation.

The essay frames the Article 51 argument around three asserted predicates. For Israel, it points to Iranian support for armed attacks by Hamas, Hezbollah, and the Houthis. For the United States, he relies on Iran-sponsored attacks against Americans and U.S. facilities. For both states, it adds Iran’s alleged continued pursuit of nuclear weapons, coupled with openly hostile rhetoric toward the United States and Israel. On this view, Iran’s conduct satisfies the threshold for self-defense not merely through direct state action, but also through substantial involvement in proxy violence and through the scale of the danger posed by a developing nuclear capability.

The essay then places considerable weight on Resolution 2817, which we should read as a resolution condemning Iranian attacks on neighboring Gulf states, threats to close the Strait of Hormuz, and affirming the inherent right of individual and collective self-defense. The essay further suggests that the absence of Security Council condemnation of prior U.S. and Israeli actions implies retrospective validation and furnishes a legal basis for continued or broader multinational action. That is a notably expansive reading of the resolution’s legal effect, and it is central to the claim that force was lawful both before and after March 11.

The major theme is an institutional critique. The argument goes that the Charter’s collective-security design has not functioned as intended because the veto has often impeded rather than enabled peace enforcement. There is emphasis on the failure of the Military Staff Committee and the collapse of the Charter’s expectation that member states would maintain forces available for rapid U.N. action. These structural failures help explain why states have increasingly relied on self-defense rationales rather than awaiting Security Council consensus. We, therefore, are presented with contemporary law on the use of force as a product not only of treaty text, but also of state practice developing in response to institutional paralysis.

The legal analysis of self-defense relies heavily on the evolution of “armed attack” and “imminence.” The International Court of Justice’s reasoning in Nicaragua supports the proposition that a state may commit an armed attack through proxies, irregulars, or substantial involvement with non-state actors. Also, post-9/11 practice argues that terrorist attacks can trigger Article 51. From there, the essay endorses an expanded conception of anticipatory self-defense, drawing on the Caroline formula but arguing that imminence should now be assessed not only temporally, but also by reference to the gravity of the threatened harm, the adversary’s capabilities, and the nature of the potential attack.

At the same time, the essay expressly limits the scope of its intervention. While the legality of resort to force is addressed, how hostilities are conducted is not; for example, even a lawful initial use of force does not immunize a state from later violations of the law of armed conflict. In sum, the essay offers a modernization thesis: Article 51 must evolve through state practice to remain operationally relevant in an era defined by proxy violence, terrorism, and existential strategic threats.